Whimbush v. People, 92SC604

• Decision Date: 14 February 1994
• Docket Number: No. 92SC604,92SC604
• Citation: 869 P.2d 1245
• Parties: Roy W. WHIMBUSH, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1245

869 P.2d 1245

Roy W. WHIMBUSH, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 92SC604.

Supreme Court of Colorado En Banc.

Feb. 14, 1994.

David F. Vela, Colorado State Public Defender, and Joan E. Mounteer, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., and Katherine M. Clark, Asst. Atty. Gen., Cr. Enforcement Section, Denver, for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

The petitioner, Roy W. Whimbush, was convicted of criminal extortion pursuant to section 18-3-207(1), 8B C.R.S. (1986). The Colorado Court of Appeals affirmed his conviction in an unpublished opinion, People v. Whimbush, No. 90CA2071 (Colo.App. July 16, 1992). We granted certiorari to consider whether section 18-3-207(1) is unconstitutionally overbroad, whether the trial court erred by denying a proposed jury instruction defining "threat," and whether the trial court erred by denying Whimbush's motion for judgment of acquittal when the prosecutor presented no evidence that Whimbush acted without legal authority. We hold that section 18-3-207(1) is unconstitutionally overbroad on its face. ¹ We reverse and remand the case with directions.

I

Whimbush worked for a local mortuary for approximately one year selling pre-need funeral plans on a commission basis. Whimbush and the owner of the mortuary (the owner) eventually became involved in a dispute over the amount of commissions owed to Whimbush, and the two mutually agreed that Whimbush would no longer work at the mortuary.

The owner's staff threw a surprise birthday party for him at the mortuary on September 1, 1989, and hired a male stripper as entertainment. Even though he was no longer an employee, Whimbush attended the party and took photographs of the stripper's act.

Angered that the owner had not paid him the sum allegedly owed to him in commissions, Whimbush telephoned the mortuary on April 4, 1990. He asked the general manager of the mortuary to tell the owner that he had some photographs of the birthday party that he was going to sell to the highest bidder. Whimbush then called back an hour later and told the general manager that a local newspaper had offered him $3000 for the pictures.

In response to these calls, the owner contacted the Denver District Attorney's Office. That office arranged to have the owner's telephone monitored, and recorded conversations between the owner and Whimbush. In the first conversation, Whimbush told the owner that he had found a roll of film containing pictures of the stripper from the birthday party. Whimbush also stated that he would give the film to the owner if the owner paid him $2844, the amount Whimbush claimed the owner owed him in unpaid commissions. Later that day, the owner, accompanied by an undercover police officer and back-up officers, drove to Whimbush's home and delivered $3000 to him in exchange for the film. As soon as the money was exchanged for the film, Whimbush was arrested.

Whimbush was then charged with one count of criminal extortion pursuant to section 18-3-207(1), 8B C.R.S. (1986). After a jury trial, Whimbush was found guilty of criminal extortion ² and was ultimately sentenced to two years' probation. The court of appeals affirmed the judgment of conviction.

II

The extortion statute at issue in this case provides:

Whoever without legal authority threatens to confine, restrain, or cause economic or bodily injury to the threatened person or another or to damage the property, economic well-being, or reputation of the threatened person or another with intent thereby to induce the threatened person or another against his will to do an act or refrain from doing a lawful act commits criminal extortion which is a class 4 felony.

§ 18-3-207(1), 8B C.R.S. (1986). According to Whimbush, this statute is facially overbroad because it sweeps within its reach both constitutionally protected and unprotected speech. We agree.

A statute will be struck down as facially overbroad in violation of the state ³ and federal ⁴ constitutions if it substantially infringes upon constitutionally protected speech while proscribing speech which is not constitutionally protected. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973); People v. Ryan, 806 P.2d 935, 939 (Colo.), cert. denied, 502 U.S. 860, 112 S.Ct. 177, 116 L.Ed.2d 140 (1991); People v. Batchelor, 800 P.2d 599, 601 (Colo.1990). Thus, to determine whether section 18-3-207(1), 8B C.R.S. (1986) is overbroad, we must examine the degree to which the statute could be used to prohibit speech that is beyond the reach of governmental regulation. Bolles v. People, 189 Colo. 394, 397, 541 P.2d 80, 82 (1975).

A statute properly may criminalize threats which constitute "fighting words" provoking immediate violence. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Similarly, words that are calculated to produce immediate panic are not entitled to constitutional protection. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919).

However, not all threats fall outside the scope of protected speech. For example, in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), the United States Supreme Court determined that an NAACP consumer boycott was protected expression, even though the petitioners sought to persuade others to join the boycott through social pressure and the "threat" of social ostracism. According to the Court, "[s]peech does not lose its protected character ... simply because it may embarrass others or coerce them into action." Id. at 910, 102 S.Ct. at 3424. See also Bolles, 189 Colo. at 398, 541 P.2d at 83 ("[I]f unsettling, disturbing, arousing, or annoying communications could be proscribed, ... the protection of the First Amendment would be a mere shadow indeed.").

Similarly, in Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), the Supreme Court overturned an injunction against the distribution of leaflets accusing a real estate broker of "blockbusting" tactics. Although the organization distributed the leaflets to coerce the broker into signing an agreement to change his practices, the Supreme Court stated that "[t]he claim that the expressions were intended to exercise a coercive impact on [the broker] does not remove them from the reach of the First Amendment." Id. at 419, 91 S.Ct. at 1578. See also NAACP, 458 U.S. at 911, 102 S.Ct. at 3424; Wurtz v. Risley, 719 F.2d 1438, 1441 (9th Cir.1983).

Colorado's criminal extortion statute could be used to prohibit threats of imminent bodily harm and other types of non-protected speech without violating the federal or state constitutions. However, the statute is facially overbroad because it also covers threats of collective action in support of group demands protected by cases such as NAACP and Keefe. And, as the Oregon Supreme Court noted when examining an analogous coercion statute in State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982):

[A]part from reaching such relationships, the statute makes no distinction whether the coercive demands and threats are addressed by one person to another in a private confrontation or correspondence or in a more or less public setting designed to inform and perhaps involve others in the issues posed by the demand and the potential sanction. Yet such a setting often will involve protected communication with this wider audience.

Id. 649 P.2d at 589.

The prosecution argues that the element of "intent" to induce another person to act against his or her will limits the scope of the statute to conduct and speech that is not constitutionally protected. We disagree. As we stated in People v. Smith, 862 P.2d 939, 942 (Colo.1993), a specific intent requirement does not eliminate overbreadth concerns when the effect associated with the intent provision (in this case, to induce another to act against his or her will) encompasses a substantial amount of protected activity.

III

Even though a statute is substantially overbroad, it should not be invalidated in toto when a limiting construction will restrict the statute's scope to unprotected conduct. Ryan, 806 P.2d at 940. However, a court should not apply a saving construction when to do so would involve rewriting legislation in the face of contrary legislative intent. City of Seattle v. Ivan, 71 Wash.App. 145, 856 P.2d 1116, 1123 (1993). See also Scales v. United States, 367 U.S. 203, 211, 81 S.Ct. 1469, 1477, 6 L.Ed.2d 782 (1961) ("Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not ... carry this to the point of perverting the purpose of a statute."); Lawrence Tribe, American Constitutional Law 1032 (2d Ed.1988). In our opinion, there are no limiting constructions which would render the statute constitutional consistent with the legislature's intent.

Whimbush argues that the statute should be construed to proscribe only threats to do an unlawful act. We reject this interpretation of the statute. The language of the statute does not so limit its intended reach, and we do not believe that the legislature intended such a requirement.

In interpreting a statute, our primary task is to ascertain and give effect to the intent of the legislature. People v. Davis, 794 P.2d 159, 180 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991); People v. Terry, 791 P.2d 374, 376 (Colo.1990). To determine legislative intent, we begin with the language of the statute itself and interpret statutory terms in accordance with their commonly accepted meanings. Thiret v. Kautzky, 792 P.2d 801, 806 (Colo.1990); People v. District Court, 713 P.2d 918, 921 ...